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International Humanitarian Law and Human Rights Law
By Ch. Narendra Singh
International humanitarian law primarily deals with armed conflict between two or more states. It also contains certain norms and rules which are applicable to non-international or internal armed conflicts. It indicates as to how a party to a conflict is to behave in relation to people at its mercy. Therefore, international humanitarian law is a part of human rights law applicable in armed conflict.
Humanitarian law was developed at a time when recourse to force was not illegal as an instrument of national policy. The foundations of international humanitarian law were laid at a time when there was no disgrace in resorting to war. There were many restraints in behavior during war. These restraints were put relying upon the notion of what was considered to be honorable and civilized.
War or armed conflicts or hostilities have been a part of human life. On the other hand, the early human institutions are not totally barbaric without any element of compassion. According to Saint Augustine, 'wars may be called just when they are waged to punish unjust acts'. The Hindus evolved the idea of just wars in their concept of Dharmayudha. Even in Shrimad Bhagavad-Gita, the war field of Kurukshetra was described as Dharmakshetra by Dhritarastra asking Sanjay in the following words. "Dharmakshetre Kurukshetre Samabata Yuyutsava: Mamaka Pandabascheiba Kima Kurbata Sanjaya" O Sanjaya! What is happening in between my aggressive party and that of Pandu in the Kurukshetra the Darmakshetra?"
This shows that a war is waged only between dharma and adharma in order to have a test as to which side represents the Dharma (Just). Even Lord Krishna who was a charioteer in Kurukshetra said, he reincarnates when society is swallowed by adharma in order to destroy the evil and set-up Dharma (Justice). Manu the lawgiver has set the law of war by providing that "fighting in battle, he should not kill his enemies with weapons that are concealed, barbed or smeared with
poison or whose points blaze with fire. Similarly, the king could not kill one who has climbed mound or is impotent or folds hands in supplication or one asleep or without armour or one who is engaged with some one else. Although there existed certain humanitarian principles of warfare; we find instances in Mahabharata of war derogatory to humanitarian principles. Some instances are Abhimanyu being attacked within Chakrabyuha by numerous maharathis when he was injured and helpless, Ashwathama the son of Dronacharya had murdered 5 sons of Droupadi when they were asleep, Karna was to meet death by fatal blow of Arjun when he was engaged in lifting up his chariot wheel, swallowed by mother earth. In Ramayana also Bali was killed by the fatal arrow or Ram, while he was engaged
in hand to hand fight with Sugrib.
The customary law of war is found in the Lieber code of 1863. This code is used as principal basis for the development of The Hague conventions of 1899 and 1907.
War is lawful under the Lieber code at article 67: Under the said article it is provided that law of nations allows every sovereign government to make war upon another sovereign state. The law permits all the acts that was considered necessary to defect the enemy subject to the restraint of what was perceived as unnecessary cruelty. Under Article 16 of the code, military necessity does not admit of cruelty i.e. infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture or extortion of confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district.
Two basic rules of international humanitarian law namely the protection of civilians and decent treatment of prisoners of war are also laid down in the code.
The first treaty provision in respect of humanitarian law is to be found in Article 3 common to all the four Geneva Conventions of 1949. The important provisions in this article are summarized as follows:
a) Persons not taking part in armed hostilities and wounded and sick persons shall be treated humanely without any discrimination on the basis of race, color, religion, faith or sex etc.
b) The above mentioned persons shall not be subject to violence in life and person, cruel treatment and torture. They cannot be taken as hostages, their personal dignity shall be respected, and they have a right of fair trial.
c) The wounded and sick persons shall be given due attention.
d) An impartial humanitarian body such as ICRC may offer its services to the parties to the conflict, if the concerned state permits.
An important change in the humanitarian law now is that recourse to war is no longer a legal means of resolving conflict. Therefore, importance of humanitarian law lies as a means of sparing non-combatants as much as possible from the horrors of war. The respect for human life necessarily follows that use of force is in itself a violation of human rights. Even if there is legal prohibition of use of force, war or more appropriately armed conflict in reality exist. It is for this reason; humanitarian law is an effective mechanism for protection of people in armed conflict today.
Article 3 of the four Geneva Conventions refers to "parties to the conflict" rather than mere states parties to the Convention. Therefore, it is clear that the insurgents involved in an internal conflict against the lawful government are also expected to follow humanitarian standards.
As far as the law of human rights is concerned, the first major instrument defining human rights is the Universal Declaration of Human Rights 1948. The said declaration contains not only civil and political rights but also economic and social rights. In order to transform this declaration in to international treaty law, the two convents came into being. International covenant on civil and political rights, 1966 which requires each state party to respect and to ensure to all individuals the rights recognized in the present convent. The international convenient on Economic, social and cultural rights, 1966 requires each state party to take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present convenient.
In addition to the international covenant on civil and political rights, three regional human rights treaties namely European convention on human rights, the American convention on human rights and African charter also contain provisions similar to the covenant. These are:
1. Right to life.
2. Prohibition of torture and cruel, inhuman or degrading treatment or punishment.
3. Prohibition of slavery, slave trade and servitude.
4. Non-imprisonment on the ground of inability to fulfill a contractual obligation.
5. Non-retroactivity of criminal law.
6. Right to recognition as a person before law.
7. Right to freedom of thought, conscience and religion.
8. Non-discrimination on the ground of race, color, sex language, religion or social origin.
These rights are regarded as most basic at all times and hence no derogation from these is permitted even during grave emergency situation. In India, many of the above rights have been made the fundamental rights in part III of the Constitution of India, like no discrimination on the ground only of religion, race, caste, sex and place of birth; abolition of untouchability, trafficking in human being, forced labor; right to life and personal liberty, protection from retrospective criminal law, freedom to practice profess and propagate a religion of one's own choice etc.
Even though universal human rights are guaranteed in the Constitution, some of them can be suspended during a proclamation of emergency by the President of India. When the security of India is any part of the territory thereof is threatened by war or external aggression a Proclamation of emergency can be issued. The provisions of fundamental rights of freedom of speech and expression, to assembly peaceably and without arms, to travel in any part of the territories of India, to move freely throughout the territories of India, to settle in any part of the territories of India, to form association or union and freedom to practice any trade profession or business are automatically curtailed. Over and above this provision the President may suspend the right to move the court to enforce any of the fundamental rights during emergency.
However, since the year 1979 by a Constitutional amendment, the fundamental rights of right to life and personal liberty and protection against export facto criminal law are put beyond the operation of emergency. In other words, no derogation from the said two human rights is permitted by the Constitution even during the grave emergency situation.
The contemporary international humanitarian law is universally accepted. In case of India, it has signed the Geneva Conventions of 1949 in 1950; The Hague Conventions of 1954 in 1958 and the Weapons Convention, 1980 in 1984. The government of India is yet to sign both Geneva Protocols of 1977.
The Geneva conventions of 12th August 1949 were ratified by the President of India on October 16, 1950 and came into force in India on May 9, 1951. To implement the convention, the Parliament of India has passed the Geneva Conventions act, 1960 which came into force since 14-8-1961.
The four conventions are:
1. Geneva conventions for the Amelioration of the conditions of wounded, sick in armed forces in the field.
2. Geneva convention for the Amelioration of the conditions of the wounded, sick and shipwrecked members of armed forces at the seal.
3. Geneva conventions relative to the treatment of prisoners of war.
4. Geneva conventions relative to the protection of civilian persons in time of war.
Parties to these conventions have undertaken to enact legislation necessary to implement certain provisions thereof. In pursuance of such undertaking, the Parliament of India has enacted the Geneva conventions act, 1960. The act has 5 chapters and 4 schedules. It is provided that any person regardless of their nationality or citizenship within or without India commits or attempts to commit or abets or procures commission by any other person of a grave breach of convention, shall be punished with death, imprisonment of life, where the offence involves willful killing of a person protected by any of the conventions.
In any other case the punishment provided is imprisonment for a term which may extend to 14 years. Grave breach of convention means, any of the following acts committed against person or property, protected by the conventions being: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great sufferings or serious injury to body or health and extensive destruction and appropriation of property, not justifiable by military necessity and carried out want only or unlawfully.
This provision prescribes punishment of offenders against the 4 conventions. Another significant provision of the act is chapter IV. The chapter makes provision against the abuse of the Red Cross and other emblems. The provision is worded in a negative tone that no person shall without the approval of the central government use for any purpose whatsoever the emblem of red cross with vertical and horizontal arms of the same length on and completely surrounded by a white ground of the designation red cross or Geneva cross. The prohibition extends to use of emblem of Red Crescent or red lion and sun on white ground another prohibition extend to use of the emblem of white or silver cross with
vertical or horizontal arms of same length on and completely surrounded by a red ground being the heraldic emblem of the Swiss confederation. Further no person shall use any design or wording so nearly resemble any or the emblems or designations mentioned above.
If any person contravenes any of the provisions which prohibits use of red cross and other emblems, shall be punishable with fine which may extend to five hundred rupees and liable to forfeit and goods upon or in connection with which the emblem, designation, design or wording was used by that person.
The four schedules of the Act have reproduced the four Geneva conventions. Thus, the 4 Geneva Conventions of 1949 have become enacted law of India and every person within or without India are under a legal obligation to respect the convention, violation of which has penal consequences.
The Geneva Conventions Act, 1960 represents a statutory humanitarian law of India implementing the 4 Geneva Conventions. Respect for humanitarian law is a necessity for preventing extensive destruction and bitterness so that a lasting peace is established.
Even if, the 4 Geneva Conventions have been made enacted law of India, people are not aware enough of the act. No case has been registered under the act and there is no reported case which centers round the act and interpretation. We find good number of instances of violation of the provisions of the act in and around us. For instance, Red Cross emblems have been unknowingly used by pharmacy, medical ambulances, and medical practitioner in their private vehicles. Red Cross has nothing to do with medical profession as laid down in the act. It would be a good beginning to impart humanitarian laws, if the people are made aware of the Geneva conventions act, 1960.
****The author is a faculty member of the LMS Law College Imphal. This paper was read out at a recent seminar on International Humanitarian Law organized at the college premises by the LMS Law College Students
Union.****
(Courtesy:
The Imphal Free Press) |
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